COSTS OF COLLECTION.

The expression or clause in notes, "and costs of collection," is surplusage, and not destructive of the negotiability of the notes, for

the reason that no costs of collection can

accrue if the notes are paid when due. The great weight of authority is that notes that waive benefit of valuation, appraisement, and exemption laws, and provide for the payment of attorney's fees, do not destroy the negotiability by rendering the amount to be paid uncertain. Nicely v. Winnebago Nat. Bank, 47 N. E. 476, 477, 18 Ind. App. 30 (citing Nicely v. Bank, 15 Ind. App. 563, 44 N. E. 572, 57 Am. St. Rep. 245).

COSTS OF MOTION.

A direction of a court not contained in a judgment is an order. An application for an order is a motion. An order of the General Term upon appeal from an order comes within these definitions, and therefore falls within section 779, Code, which stays all proceedings when "costs of a motion" are given, until payment thereof. The rule as to costs upon a motion is applied by the Code to interlocutory costs upon an issue of law, the same as if they were costs on a motion. Phipps v. Carman (N. Y.) 26 Hun, 518, 519.

The phrase "costs of a motion," as used in Code Civ. Proc. § 779, providing that where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for the purpose, all proceedings on the part of the party required to pay them, except to review or vacate the order, are stayed, cannot be construed to include the costs of an appeal from an order granting a new trial on the merits. Eisenlord v. Clum, 5 N. Y. Supp. 512, 52 Hun, 461.

COSTS OF PROSECUTION.

Rev. Laws, § 713, authorizing the chancery court to require of either party sufficient security for the costs of the prosecution of an action, will be construed to apply to the defendant as well as the plaintiff, when the former is prosecuting an affirmative counterclaim. Badger v. Taft, 3 Atl. 535, 537, 58 Vt. 585.

The expression "costs of prosecution," as used in a statute providing that one tried and convicted might be adjudged to pay the costs of prosecution, meant such only as were incurred in the conduct of the prosecution, and making it effectual in a verdict, and not those which the defendant incurred in resisting the prosecution and defending himself from the criminal charge. State v. Wallin, 89 N. C. 578, 580.

COSTS OF SUIT.

The terms "costs of suit" and "costs of prosecution" have a well-known technical

meaning, as well understood by lawyers as The exthe term "suit" or "prosecution." pression does not mean all the expenses incurred, but it means the expenses pending the suit, as allowed or taxed by the court. Lord Coke says "costs are expensæ litis, and suit. Even the officer's fees on execution or shall be allowed for expenses pending the warrant are not included in the costs, properly so called." Town of Norwich v. Hyde, 7 Conn. 529, 534.

COSTS TO ABIDE EVENT.

As to what constitutes "event," see "Event."

A remittitur on reversal of a judgment by the Court of Appeals, with "costs to abide the event," should be construed to include the costs and disbursements of the first trial, and of the party's appeal to both the General Term and the Court of Appeals on the rendition of a judgment in his favor on a second trial. Powers v. Manhattan R. Co., 14 N. Y. Supp. 130, 131, 20 Civ. Proc. R. 78.

Where an order is made by an appellate court reversing a judgment, with "costs to abide the event," the costs intended by the order include those of the appeal, so that, if the appellee is finally successful, he is entitled to tax the costs of the appeal. First Nat. Bank v. Fourth Nat. Bank, 84 N. Y. 469, 470.

A decision of an appellate court reversing a judgment, and ordering a new trial with "costs to abide the event," means only that the party finally prevailing is entitled to his costs in that court, and not that he must recover for all proceedings in the cause. Thomas v. Evans, 3 N. Y. Supp. 297, 298, 50 Hun, 441.

"Costs to abide the event" means all costs of the action, up to and including the decision in the Court of Appeals. Smith v. Lehigh Valley R. Co., 82 N. Y. Supp. 674, 675 (citing Franey v. Smith, 126 N. Y. 658, 27 N. E. 559).

COTTAGE.

A cottage is a small dwelling house. Any number of cottages may, therefore, satisfy the allegation of a number of dwelling houses; and there is not any repugnance in common speech between calling a dwelling house a "messuage" in one instrument, and a "cottage" in another. Young v. Sotheron, 2 Barn, & Adol. 628, 634.

In Johnson's and other English dictionaries, a cottage is said to be a small house, and a house is said to be a dwelling place, so that any small dwelling place may, without impropriety of language, be described as a cottage. A large dwelling house or cot

COTTON NOTES.

Cotton notes are receipts given for each cotton bale received on storage by a public warehouse. Fourth Nat. Bank v. St. Louis Cotton Compress Co., 11 Mo. App. 333, 337.

COTTON PILE FABRICS

Trimmings cut out of cotton velvet in various open and scroll work designs and colors are dutiable as cotton pile fabrics, under Tariff Act July 24, 1897, c. 11, § 1, Schedule I, par. 315, 30 Stat. 178 [U. S. Comp. St. 1901, p. 1659]. Horstmann, Von Hein & Co. v. United States (U. S.) 121 Fed. 147.

COTTON WASTE.

An application for insurance, representing that there was no cotton or woolen waste or rags kept in or near the property to be insured, means only such waste or rags as are, from their nature or condition, easily inflammable; and clean, white rags, though In the most literal sense included in the term, are not within its spirit or meaning, and should not be regarded as a breach of the representation. Elliott v. Hamilton Mut. Ins. Co., 79 Mass. (13 Gray) 139, 145.

COTTON WEARING APPAREL.

"Cotton wearing apparel," as used in Tariff Act Oct. 1, 1890, par. 349, does not include so-called fascinators made of cotton chenille. Oppenheimer v. United States (U. S.) 66 Fed. 740.

COTTON WEBBING.

Cotton elastic webbing is made of rubber and cotton, as distinguished from wool elastic webbing, made of rubber, wool, and cotton, and from union elastic webbing, made of rubber, silk, and cotton. Beard v. Nichols, 7 Sup. Ct. 548, 120 U. S. 260, 30 L Ed. 652.

Webbing made of cotton, silk, and India rubber, the cotton predominating in quantity, and the rubber in value, cannot, in the absence of any finding as to its commercial or common designation, be classified as "cotton webbing," under Tariff Act 1890, par. 354, Schedule I, but should be placed under paragraph 460, as a manufacture of which India rubber is the component material of chief value. United States v. Shattuck (U. S.) 59 Fed. 454, 455, 8 C. C. A. 176.

COULD.

In a charter party for a voyage from Sundswall to Southampton, stipulating that the owner should receive the highest freight "which he could prove" to have been paid for ships on the same voyage when the ves2 WDS. & P.-41

sel passed Elsinore, the words "could prove" were satisfied by the capacity to prove, coupled with knowledge on the part of the defendant of the capacity to prove, and of existence of the facts, and did not mean strictly legal proof. Gether v. Capper, 15 C. B. 696.

COUNCIL.

See "City Council"; "Common Council"; "Town Council."

Other council, see "Other."

The word "council," in cities which have a board of aldermen, includes common council. Bates' Ann. St. Ohio 1904, § 1536-907.

The word "council," as used in an act relating to reformatory institutions established by counties and cities, shall be taken and held to mean the corporate authorities of any city or town, by whatever name or style the same may be designated. Shannon's Code Tenn. 1896, § 4416.

The word "councilman" may include Rev. St. Utah 1898, § trustees of towns.

2498.

The word "council" shall include any body or bodies authorized to make ordinances for the government of a city or town. Code Va. 1887, § 5.

The word "council" shall include any body or board, whether composed of one or more branches, who are authorized to make ordinances for the government of a city, town, or village. Code W. Va. 1899, p. 134, c. 13, § 17.

The word "council," as used in Rev. St. § 1380, relating to the change of boundaries of a municipal corporation, includes the board of trustees of a hamlet. In re Town of Newburgh, 8 O. C. D. 24, 25, 15 Ohio Cir. Ct. R. 78.

COUNCILMEN.

Commonly and colloquially, when we speak of a councilman or alderman, we do not refer to a mayor. Hence, under a statute providing that the councilmen and aldermen of towns and cities shall be ineligible during their term of office to any other municipal office in said towns and cities, a mayor is not therefore rendered ineligible. Akerman v. Ford, 42 S. E. 777, 116 Ga. 473.

In an ordinance regulating municipal elections, and providing for the election of a certain number of councilmen, under a statute authorizing the city to elect a certain number of aldermen, to be known as the "city council," the term "councilmen" has the same meaning as the term "aldermen," as used in the statute. State v. Anderson, 8 South. 1, 4, 26 Fla. 240.

COUNSEL.

See "Of Counsel"; "State's Counsel."

The words "counsel," "advise," or "assist" may be, and frequently are, used to describe the offense of a person who, not actually doing the felonious act, by his will contributed to, or procured it done. True v. Commonwealth, 14 S. W. 684, 685, 90 Ky. 651; Omer v. Commonwealth (Tex.) 25 S. W. 994, 996.

As an attorney.

The term "counsel," as used in Rev. Laws, 437, requiring that the interrogatories annexed to a commission for depositions be signed by the party or his counsel in the cause, was not intended to be employed in that peculiar and restricted sense in which it is used at Westminster Hall, in distinction from "attorney." In our courts a man's attorney is usually his counsel, even though he is not a counselor of this court. Ludlam v. Broderick, 15 N. J. Law (3 J. S. Green) 269, 271.

Within Sanb. & B. Ann. St. § 752a, providing that circuit judges are authorized to appoint counsel to assist the district attorney in the prosecution of persons charged with crime, the term "counsel" means one who has been admitted as an attorney at law in this state, and who is associated in the management of a particular cause, or who acts as legal adviser in reference to any matter requiring legal knowledge and judgment. State v. Russell, 53 N. W. 441, 442,

83 Wis. 330.

Rev. St. 70, 10, providing that no justice shall take cognizance of any cause or do any judicial act where he shall have been a counsel in the case, means concerned in the case or having charge of it as attorney, and there is no distinction between being "of counsel" and "attorney" in the case. Ingraham v. Leland, 19 Vt. 304, 307.

An attorney is a person authorized to appear for and represent a party in the written proceedings in any action, suit, or proceeding, in any stage thereof. An attorney, other than the one who represents the party in the written proceedings, may also appear for and represent a party in court, before a judicial officer; and then he is known in the particular action, suit, or proceeding, as counsel only, and his authority is limited to the matters that transpire in the court or before such officer at the time. Ann. Codes & St. Or. 1901, § 1049; Ballinger's Ann. Codes & St. Wash. 1897, § 4758.

COUNSEL IN THE CAUSE.

The term "counsel in the cause," as used in the statute excepting counsel in the

cause from the right to witness fees, does not include attorneys in attendance on the court on business other than that of the action in which they were witnesses. Abbott v. Johnson, 2 N. W. 332, 335, 47 Wis. 239.

COUNSELOR.

Attorney at law distinguished, see “Attorney at Law."

COUNT.

See "Common Counts"; "Counting upon a Statute"; "General Count"; "Omnibus Count"; "Special Count."

"A count is sometimes considered as synonymous with a declaration, and this was its original signification in the law French, but it is now most generally considered as a part of a declaration wherein the plaintiff sets forth a distinct cause of action. Cheetham v. Tillotson (N. Y.) 5 Johns. 430, 434.

The term "counts" is used to designate the several different forms in which plaintiff states his cause of action in his declaration. Buckingham v. Murray's Ex'r, 30 Atl. 779, 780, 7 Houst. 176.

The word "count," in Gen. St. § 229, prohibiting any candidate being put in charge of any box in which votes are cast for the office, or to take part in the count thereof, must be given not its narrowest and most technical meaning, but that wider meaning, reasonably applied, which embra

ces all those acts of the counter which are

Under this

within the natural and proper scope of his duties, and which bring to him any opportunity to perpetrate a fraud. section, the action of a candidate for office in merely cutting off the sides of a few envelopes containing ballots, with a machine used for that purpose, to illustrate the operation of the machine, at the request of the election counters, is not taking part in the count. Grelle v. Pinney, 62 Conn. 478, 483, 26 Atl. 1106, 1108.

In indictment.

"The word 'count' is used when in one finding by the grand jury the essential parts of two or more separate indictments for crimes apparently distinct are combined, the allegations for each being termed a 'count,' and the whole an 'indictment'; and an indictment in several counts, therefore, is a collection of several bills against the same defendant for offenses which on their face appear distinct, under one caption, and found and indorsed collectively as true by the grand jury. The object is what it appears to be, namely, in fact, to charge the defendant with the distinct offenses, under the idea that the court may, as often as it